2717. Id. If any of such lands remain unsold for want of a bidder, the mayor, the president of the board of trustees, or district judge, shall have power to sell or cause the same to be sold at public or private sale, on such terms as may be deemed for the best interest of the city or town; provided, that none of such lands shall be sold for less than five dollars per acre. [C. L. § 2824*.

2718. Lands reserved for public uses. Lots or parcels of land necessary for streets, avenues, lanes, public squares, parks, schoolhouses, hospitals, asylums, fire engine and hose houses, pest houses, state or other public buildings. or other public use, may be reserved by the mayor, the president of the board of trustees, or the district judge, as the case may be; and he may execute and deliver to the proper party a deed for any property set aside for such purposes. A certified plat of such surveyed lands shall be filed for record in the office of the county recorder of the county. [C. L. § 2824*.

2719. Application of proceeds of sale. All moneys arising from the sale of lands, after deducting the costs and charges of such sales, shall be paid into the city or town treasury in cases where such lands have been entered in trust by corporate authority, or into the county treasury in cases where such lands have been entered in trust by the district judge; and the same shall be set apart and applied by the city council, or by the board of trustees of an incorporated town, or by the board of county commissioners, in case of an unincorporated town, to the improvement of public squares and streets, the construction of sewers and procuring a supply of water for the use and benefit of the inhabitants of the city or town. Such money shall be drawn for the purposes before specified, when ordered by the city council, the board of trustees, or the board of county commissioners, as the case may be, in the same manner as other money is drawn. [C. L. § 2825*; '90, p. 5*.

TITLE 70.

TRADE-MARKS.

2720. Defined. The phrase "trade-mark" as used in this title includes every description of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label, or wrapper usually affixed by any mechanic, manufacturer, druggist. merchant, tradesman, association, or union, whether incorporated or unincorporated, to denote any goods to be goods imported, manufactured, produced. compounded, or sold by him, or by such association or union, other than any name, word, or expression generally denoting any goods to be of some particular class or description.

Cal. Pol. C. 3196*. Mont. Pol. C. 3160*.

"Trade-mark" defined, ? 4485.

2721. Recorded with secretary of state. Any person, association, or union, may record any trade-mark or name by filing with the secretary of state his or its claim to the same, and a copy or description of such trade-mark or name. with his affidavit attached thereto, certified to by any officer authorized to take acknowledgments of conveyances, setting forth that he, or the firm, corporation. association, or union of which he is a member, is the exclusive owner, or agent of the owner, of such trade-mark or name. ['94, p. 55*.

Cal. Pol. C. 3197*. Mont. Pol. C. 3161*.

2722. Record open to public. The secretary of state must keep for public examination a record of all trade-marks or names filed in his office, with the date when filed and name of claimant; and must at the time of filing collect from each claimant the authorized fee. ['94, p. 56*.

Cal. Pol. C. 3198. Mont. Pol. C. 3162”.

Any

2723. Ownership. Transfer. Damages for infringement. person who has first adopted and used a trade-mark or name, whether within or beyond the limits of this state, is its original owner. Such ownership may be transferred in the same manner as personal property, and is entitled to the same protection by suits at law; and any court of competent jurisdiction may restrain, by injunction, and award damages for, any use of trade-marks or names in violation of this title. ['94, p. 56*.

Cal. Pol. C. 3199. Mont. Pol. C. ? 3163.

Illegal use of or counterfeiting trade-mark, ?? 4482-4486.

TITLE 71.

WEIGHTS AND MEASURES.

2724. U. S. standard governs. The standard of weights and measures adopted and used by the government of the United States is hereby declared the only legal standard of weights and measures in this state. [C. L. § 31*.

U. S. standard, 4404.

State sealer.

2725. Duties. The state auditor shall be ex officio state sealer of weights and measures, and shall procure and have the care and custody of the authorized public standard of weights and measures. He shall try and prove by such standards all weights and measures, scales and beams, which may belong to any county, and be sent or brought to him for that purpose by the county sealer, and shall seal such, when found to be correct, by stamping upon them the letter U with a seal which he shall have and keep for that purpose. [C. L. §§ 30, 32*.

2726. County sealer. Standards. The county clerk of each county shall be ex officio the sealer of weights and measures for the county, and shall have the care and custody of the county standards. He shall procure at the expense of the county, when not already provided, a full set of weights and measures, scales and beams, which he shall cause to be tried, proved, and sealed by the state standards, under the direction of the state auditor. [C. L. §§ 31*, 40*.

2727. Id. Duties. The several county sealers shall try and prove all weights and measures, scales and beams, when requested by the owners thereof, or by any other person, so to do, and upon the payment to them of the fees prescribed by law, and when the same are found or made to conform to the legal standards, they shall seal and mark such weights and measures with a seal to be kept by them for that purpose. [C. L. §§ 32*, 41*.

2728. False standard. Short weight. Any person dealing in any article of produce or merchandise who shall himself or by his agent or employee use any weight or measure other than the standard herein specified, or who shall himself or by his agent or employee give short weight or measure or less than the full quantity of any article sold, shall be liable for each offense to a fine in any sum less than three hundred dollars, and for all damages accruing for such offense to the party injured. [C. L. §§ 33*, 42.

2729. Fees of county sealers. of the county the fees prescribed by law. False weights and measures, ?? 4404-4407. Fees of sealers of weights and measures, ? 972.

County sealers shall collect for the use [C. L. §§ 37*, 41*.

2730. Municipal powers not abridged. Nothing in this title shall be construed to curtail or in any manner abridge the powers of municipal corporations to make such regulations for the trying and proving of weights and measures, scales and beams, as are granted to such corporations by the laws of this

state.

TITLE 72.

WILLS AND SUCCESSION.

CHAPTER 1.

EXECUTION AND REVOCATION OF WILLS.

2731. Who may make a will. Married man limited. Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in chapter four of this title, being chargeable in both cases with the payment of all the decedent's debts as provided by law; provided, that a married man shall not devise away from his wife more than two-thirds in value of his legal or equitable estates in real property without her consent in writing. [C. L. § 2647*.

Cal. Civ. C. 21270*.

Succession of wife, ?? 2826-2832. Property sub

ject to payment of debts, ?? 2803, 2825, 2828. Property not subject to payment of debts, ?? 2829, 3847. 2732. Fraud, etc., invalidates. A will, or a part of a will, procured to be made by duress, menace, fraud, or undue influence, may be denied probate: and a revocation, procured by the same means, may be declared void. [C. L. $ 2648.

Cal. Civ. C. 1272.

2733. Married woman may make will as if single. A married woman may dispose of all her separate estate by will, without the consent of her husband, and may alter or revoke the will in like manner as if she were single. Her will must be executed and proved in like manner as other wills. § 2649.

Cal. Civ. C. 1273.

Married woman may devise her property as if she were unmarried, Con. art. 22, sec. 2.

[C. L.

2734. Who may take by will. A testamentary disposition may be made to any person capable by law of taking the property so disposed of, but corporations other than those formed for scientific, literary, religious, charitable, benevolent, or solely educational purposes, cannot take under a will, unless expressly authorized by statute. [C. L. § 2650.

Cal. Civ. C. 1275*.

Corporations not for pecuniary profit may take by devise, 346.

2735. Written will, how executed. Every will, other than a nuncupative will, must be in writing, and every will other than an olographic or a nuncupative will, must be executed and attested as follows:

1. It must be subscribed at the end thereof by the testator himself.

2. The subscription must be made in the presence of the attesting witnesses. 3. The testator must at the time of subscribing the same declare to the

attesting witnesses that the instrument is his will; and,

4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator's request, in his presence, and in the presence of the other. [C. L. § 2651.

Cal. Civ. C. 1276*.

Nuncupative will, 2746, 2748.

2736. Olographic will. Execution. Proof. An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and

need not be witnessed. Such wills may be proved in the same manner as other private writings. [C. L. § 2652.

Cal. Civ. C. 1277*.

2737. Witness to add residence. A witness to a written will must write, with his name, his place of residence.

But a violation of this section does

not affect the validity of the will. [C. L. § 2653.

Cal. Civ. C. 1278*.

2738. Mutual will valid. Revocation. A conjoint or mutual will is valid, but it may be revoked by any of the testators in like manner with any other will. [C. L. § 2654.

Cal. Civ. C. 1279.

2739. Subsequent incompetency of witnesses. If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent incompetency from whatever cause it may arise does not prevent the probate and the allowance of the will if it is otherwise satisfactorily proved. [C. L. § 2655.

Cal. Civ. C. 1280.

2740. Will may be deposited with county clerk. Wills sealed up and indorsed may be deposited with the county clerk, who shall file and safely preserve the same until the death of the testators, unless such testators shall themselves sooner demand the same. [C. L. (1876) § 656.

2741. Conditional will. When probate denied. A will, the validity of which is made by its own terms conditional, may be denied probate, according to the event, with reference to the condition. [C. L. § 2656.

Cal. Civ. C. 1281.

Conditional wills, ? 2795, 2798.

2742. When gift to witnesses void. All beneficial devises, legacies, and gifts whatever, made or given in any will to a subscribing witness thereto are void, unless there are two other competent subscribing witnesses to the same; but a mere charge on the estate of the testator for the payment of debts, does not prevent his creditors from being competent witnesses to his will. [C. L. § 2657.

Cal. Civ. C. 1282.

2743. Id. When witness is legal heir. If a witness to whom any beneficial devise, legacy, or gift, void by the preceding section, is made, would have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of the share as would be distributed to him, not exceeding the devise or bequest made to him in the will, and he may recover the same of the other devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them. [C. L. § 2658.

Cal. Civ. C. 1283.

2744. Foreign will valid, if valid where executed. A will of real or personal property, or both, or a revocation thereof, made out of this state by a person not having his domicile in this state, is as valid when executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, as if it were made in this state and according to the provisions of this chapter.

law, 2822. Aliens take by succession as well as citizen, 2847. Proof of foreign will, 3806. The execution of a codicil referring

N. Dak. (1895) 3652. Mont. Civ. C. ? 1731. Validity and interpretation governed by what 2745. Republication by codicil. to a previous will has the effect to republish the will as modified by the codicil. [C. L. § 2660.

Cal. Civ. C. 1287.

2746. Nuncupative will. Definition. A nuncupative will is not required to be in writing nor to be declared or attested with any formalities. [C. L. § 2661.

Cal. Civ. C. ? 1288.

2747. Id. Requisites to validity. To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed:

1. The estate bequeathed must not exceed in value the sum of one thousand dollars.

2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator at the time to bear witness that such was his will, or to that effect.

3. The decedent must have been at that time in expectation of immediate death from an injury or casualty happening or occurring within twenty-four hours previous to the making of such nuncupative will. [C. L. § 2662.

Cal. Civ. C. 1289.

nor

2748. Id. Proof. No proof must be received of any nuncupative will unless it is offered within six months after speaking the testamentary words, unless the words or the substance thereof were reduced to writing within thirty days after they were spoken. [C. L. § 2663.

Cal. Civ. C. 1290.

Admission to probate, 3790.

2749. Will, how revoked. Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than:

1.

By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or,

2. By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same by the testator himself or by some person in his presence and by his direction. [C. L. § 2664.

Cal. Civ. C. 1292.

2750. Cancellation, how proved. When a will is canceled or destroyed by any other person than the testator, the direction of the testator and the fact of such injury or destruction must be proved by two witnesses. [C. L. § 2665.

Cal. Civ. C. 1293.

2751. Revocation of duplicate will. The revocation of a will executed in duplicate may be made by revoking one of the duplicates. [C. L. § 2666.

Cal. Civ. C. 1295.

2752. Effect of subsequent will. A prior will is not revoked by a subsequent will unless the latter contains an express revocation or provisions wholly inconsistent with the terms of the former will; but, in other cases, the prior will remains effectual so far as consistent with the provisions of the subsequent will. [C. L. § 2667.

Cal. Civ. C. 1296.

2753. Revocation of second will does not revive first. If after making a will, the testator duly makes and executes a second will, the destruction, cancellation, or revocation, of such second will does not revive the first will unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, cancellation, or revocation, the first will is duly republished. [C. L. § 2668.

Cal. Civ. C. 1297.

2754. Effect of ante-nuptial contract. If after making a will the testator marries, and enters into a marriage contract, and the wife survives the testator, the will is revoked unless provision has been made for the marriage contract. [C. L. § 2670*.

Marriage contract, 2 2828.

2755. Contract of sale not a revocation. An agreement made by a testator for the sale or transfer of property disposed of by a will previously made does not revoke such disposal; but the property passes by the will, subject to the